The theory on which five justices concluded that candidates for office have standing to challenge election rules is difficult—at best—to reconcile with the Court's hostility to legislative standing.
Courts aren't corrupt, judges are. We would not be better off without SCOTUS, which is a crucial institution required by the People in our Constitution. We'd be better off finally enacting legislation to better hold judges to the standard stated by the People in our Constitution: all federal "Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour."
Good behavior necessarily means fulfilling, not violating, oaths to support and defend our Constitution. While many of the people who wrote or ratified our Constitution were still alive, Chief Justice John Marshall authored one of the most famous and influential SCOTUS opinions (Marbury v. Madison) in 1803 to explain and emphasize how and why “[t]he government of the United States has been emphatically termed a government of laws, and not of men.” Declaring the supreme law of the land, making our Constitution the paramount law in the supreme law of the land, and requiring oaths to support our Constitution are the foundation of the rule of law in America. SCOTUS explained and emphasized that the People in our Constitution “direct the judges to take an oath to support” our Constitution because such “oath certainly applies, in an especial manner, to [judges’] conduct in their official character.” In Marbury, SCOTUS emphasized that the reason every “judge” must “swear to discharge his duties agreeably to the constitution of the United States” is that our “constitution forms” the primary “rule for their government.”
I might have agreed 10 years ago. Not now. The court was the least thought through part of the founders vision and the worst’analyzed. It has been responsible for the worst parts’of’Amerocan history. It is today the most dangerous weapon this awful regime has. We’d be better’off without it. Your argument seems to amount to saying that a court with good justices would be a good court. I no longer agree with
My argument is the same for judges as it is for presidents. My argument is what our Constitution says it should be.
The People expressly vested in Congress the power to “make all Laws” that are “necessary and proper for carrying into Execution” absolutely “all” the “Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” All “Senators and Representatives” also are “bound by Oath or Affirmation, to support [our] Constitution.” Clearly and irrefutably, the People bound the members of Congress to support our Constitution by fulfilling their duty to make all laws that are necessary and proper to regulate all powers vested by our Constitution in any federal public servant, including the President, any subordinate executive officer and any judicial officer.
We have judges who violate their oaths for the same reason we have presidents and other executive officers who violate their oaths. We don't require our directly-elected representatives in Congress to actually fulfill their oaths to support our Constitution with all laws that are necessary and proper to govern the conduct of executive and judicial officers.
The People (in our Constitution) commanded that "[t]he President, Vice President and all civil Officers of the United States," (including judges) "shall be removed from Office on Impeachment for, and Conviction of" any "high Crimes and Misdemeanors." But there's no reason legislation cannot be enacted so that they also can be impeached, convicted and removed for violating their oaths of office.
We need to stop pretending that judges cannot violate their oaths (or even commit high crimes or high misdemeanors) by means of their so-called rulings or so-called judgments. They clearly can and they definitely do. We need to stop pretending or presuming that impeachment and conviction should be political or performative processes instead of legal processes governed by law.
I agree! The “Bost” ruling illustrates the Roberts Court’s contempt for majority rule, allowing obvious “losers” to prick, prick prick away IF they have enough MONEY to sue, sue SUE!
Gorsuch's opinion in the Fourth Amendment case sanctimoniously (shocking) noted how he wanted to use a neutral approach and not just allow the decision to be determined by the whims of the justices. That's all they did after Katz v. U.S., after all! He cited a common law principle. The common law is judge-made. So, it is somewhat based on the whims of judges.
Is it just me, or was the line describing the positions of the justices (I don't know the term for it) in Barrett v US unusual for not mentioning several of the justices?
> JACKSON, J., delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and IV–B, and an opinion with respect to Part IV–C, in which ROBERTS , C. J., and SOTOMAYOR and KAGAN, JJ., joined. GORSUCH, J., filed an opinion concurring in part
There's no mention of Alito, Barrett, Kavanaugh or Thomas. Every other opinion I could find either says e.g. "ALITO and GORSUCH, JJ., joined that opinion in full" (Vidal v Elster), or that the opinion was for a *unanimous* court (e.g. Case last week).
Is there something funky going on here or is it just an oversight? I was hoping you'd address it today
I'm somewhat confused. There may be special cases, such as the ex officio member in the Kennedy case. But overall legislative standing involves a legislator. The idea, I thought, was that one legislator shouldn't speak for the legislature. OTOH, a candidate, though their interest might be too weak to warrant standing, has an individual interest. It is their campaign alone.
Yes, Jackson, for instance, argued that the people overall, the voters, also had an interest. She might be right. Still, of the two, I think a candidate at least has a better argument.
The Court’s hostility to legislative standing runs well past individual members. As for the individual candidate, the point of Bost is to allow standing even in cases in which there is no concrete, individualized harm to that specific candidate—because of his more general interest in “a fair process.” At that level of generality, the hostility to legislative standing seems much harder to defend.
How on earth do we preserve the Republic and the Constitution with a group of SCJ hellbent on destroying it? They are destroying our legislative branches' power ahead of the probable change in majority of Congress in November's midterm election. Congress must make the necessary changes to the SC to stop the biased judicial coup, preferably now, but definitely after the midterms.
"...then that means that the initial assignment of the majority opinions in the six remaining cases (including, as most relevant here, the Louisiana redistricting cases) went to a Republican appointee."
Q: Assuming a REPRESENTATIVE as plaintiff. Does Bost open the door a crack to enforce Section 2 of the 14th AM, most recently denied by the DC Circuit in Citizens for Constitutional Integrity v Census Bureau (With a Wilkins J concurrence saying it could happen if standing found.) ?
This decision follows on Bush v. Gore in favoring the 14th amendment rights of (some) candidates over those of the electorate, so it's unlikely to help there. As Steve notes, it's also doctrinally incoherent, like a system of logic where anything can be proved by exploiting inconsistencies.
I'd also identify Bush v. Gore as an inflection points of sorts where SCOTUS really took on in earnest inventing out of whole cloth new doctrines disrespecting the legislature.
It seems right that individual legislators ought not be able to challenge laws they believe dilute their authority (line item veto), but it seems problematic that they cannot sue the executive branch for failing to observe laws in ways that dilute their power. In the first case, they cannot sue always persuade a majority to change the law. But in the second case, it’s like the Court is telling lawmakers they have to persuade a majority to pass a new law to enforce one already on the books. If no one else has standing, the law is meaningless without more congressional action. Doesn’t seem right.
Superb analysis of Bost opinions with legal, historical, political context. We are in this together. No Kings/Queens/Shahs. Peace. Christopher and family
All the Bost decision is is another in a long list of examples of the courts corruption. The country would be much better off without the court
Courts aren't corrupt, judges are. We would not be better off without SCOTUS, which is a crucial institution required by the People in our Constitution. We'd be better off finally enacting legislation to better hold judges to the standard stated by the People in our Constitution: all federal "Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour."
Good behavior necessarily means fulfilling, not violating, oaths to support and defend our Constitution. While many of the people who wrote or ratified our Constitution were still alive, Chief Justice John Marshall authored one of the most famous and influential SCOTUS opinions (Marbury v. Madison) in 1803 to explain and emphasize how and why “[t]he government of the United States has been emphatically termed a government of laws, and not of men.” Declaring the supreme law of the land, making our Constitution the paramount law in the supreme law of the land, and requiring oaths to support our Constitution are the foundation of the rule of law in America. SCOTUS explained and emphasized that the People in our Constitution “direct the judges to take an oath to support” our Constitution because such “oath certainly applies, in an especial manner, to [judges’] conduct in their official character.” In Marbury, SCOTUS emphasized that the reason every “judge” must “swear to discharge his duties agreeably to the constitution of the United States” is that our “constitution forms” the primary “rule for their government.”
I might have agreed 10 years ago. Not now. The court was the least thought through part of the founders vision and the worst’analyzed. It has been responsible for the worst parts’of’Amerocan history. It is today the most dangerous weapon this awful regime has. We’d be better’off without it. Your argument seems to amount to saying that a court with good justices would be a good court. I no longer agree with
My argument is the same for judges as it is for presidents. My argument is what our Constitution says it should be.
The People expressly vested in Congress the power to “make all Laws” that are “necessary and proper for carrying into Execution” absolutely “all” the “Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” All “Senators and Representatives” also are “bound by Oath or Affirmation, to support [our] Constitution.” Clearly and irrefutably, the People bound the members of Congress to support our Constitution by fulfilling their duty to make all laws that are necessary and proper to regulate all powers vested by our Constitution in any federal public servant, including the President, any subordinate executive officer and any judicial officer.
We have judges who violate their oaths for the same reason we have presidents and other executive officers who violate their oaths. We don't require our directly-elected representatives in Congress to actually fulfill their oaths to support our Constitution with all laws that are necessary and proper to govern the conduct of executive and judicial officers.
The People (in our Constitution) commanded that "[t]he President, Vice President and all civil Officers of the United States," (including judges) "shall be removed from Office on Impeachment for, and Conviction of" any "high Crimes and Misdemeanors." But there's no reason legislation cannot be enacted so that they also can be impeached, convicted and removed for violating their oaths of office.
We need to stop pretending that judges cannot violate their oaths (or even commit high crimes or high misdemeanors) by means of their so-called rulings or so-called judgments. They clearly can and they definitely do. We need to stop pretending or presuming that impeachment and conviction should be political or performative processes instead of legal processes governed by law.
I agree! The “Bost” ruling illustrates the Roberts Court’s contempt for majority rule, allowing obvious “losers” to prick, prick prick away IF they have enough MONEY to sue, sue SUE!
It’s a fascist Court with fascist money it!
We’re better off without it!
Gorsuch's opinion in the Fourth Amendment case sanctimoniously (shocking) noted how he wanted to use a neutral approach and not just allow the decision to be determined by the whims of the justices. That's all they did after Katz v. U.S., after all! He cited a common law principle. The common law is judge-made. So, it is somewhat based on the whims of judges.
Is it just me, or was the line describing the positions of the justices (I don't know the term for it) in Barrett v US unusual for not mentioning several of the justices?
> JACKSON, J., delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and IV–B, and an opinion with respect to Part IV–C, in which ROBERTS , C. J., and SOTOMAYOR and KAGAN, JJ., joined. GORSUCH, J., filed an opinion concurring in part
There's no mention of Alito, Barrett, Kavanaugh or Thomas. Every other opinion I could find either says e.g. "ALITO and GORSUCH, JJ., joined that opinion in full" (Vidal v Elster), or that the opinion was for a *unanimous* court (e.g. Case last week).
Is there something funky going on here or is it just an oversight? I was hoping you'd address it today
I'm somewhat confused. There may be special cases, such as the ex officio member in the Kennedy case. But overall legislative standing involves a legislator. The idea, I thought, was that one legislator shouldn't speak for the legislature. OTOH, a candidate, though their interest might be too weak to warrant standing, has an individual interest. It is their campaign alone.
Yes, Jackson, for instance, argued that the people overall, the voters, also had an interest. She might be right. Still, of the two, I think a candidate at least has a better argument.
The Court’s hostility to legislative standing runs well past individual members. As for the individual candidate, the point of Bost is to allow standing even in cases in which there is no concrete, individualized harm to that specific candidate—because of his more general interest in “a fair process.” At that level of generality, the hostility to legislative standing seems much harder to defend.
“Fair” means you have enough money to hold up the electoral process indefinitely …..
How on earth do we preserve the Republic and the Constitution with a group of SCJ hellbent on destroying it? They are destroying our legislative branches' power ahead of the probable change in majority of Congress in November's midterm election. Congress must make the necessary changes to the SC to stop the biased judicial coup, preferably now, but definitely after the midterms.
It’s all about the power of the White Ruling Classes! Period!
"...then that means that the initial assignment of the majority opinions in the six remaining cases (including, as most relevant here, the Louisiana redistricting cases) went to a Republican appointee."
Hoo boy, I had missed that. Not good
Q: Assuming a REPRESENTATIVE as plaintiff. Does Bost open the door a crack to enforce Section 2 of the 14th AM, most recently denied by the DC Circuit in Citizens for Constitutional Integrity v Census Bureau (With a Wilkins J concurrence saying it could happen if standing found.) ?
This decision follows on Bush v. Gore in favoring the 14th amendment rights of (some) candidates over those of the electorate, so it's unlikely to help there. As Steve notes, it's also doctrinally incoherent, like a system of logic where anything can be proved by exploiting inconsistencies.
I'd also identify Bush v. Gore as an inflection points of sorts where SCOTUS really took on in earnest inventing out of whole cloth new doctrines disrespecting the legislature.
It seems right that individual legislators ought not be able to challenge laws they believe dilute their authority (line item veto), but it seems problematic that they cannot sue the executive branch for failing to observe laws in ways that dilute their power. In the first case, they cannot sue always persuade a majority to change the law. But in the second case, it’s like the Court is telling lawmakers they have to persuade a majority to pass a new law to enforce one already on the books. If no one else has standing, the law is meaningless without more congressional action. Doesn’t seem right.
Steve,
Superb analysis of Bost opinions with legal, historical, political context. We are in this together. No Kings/Queens/Shahs. Peace. Christopher and family
Thank you for this, Steve. I appreciate all the specificity and your explanations.